Citation Nr: 1122985	
Decision Date: 06/15/11    Archive Date: 06/28/11

DOCKET NO.  10-30 220	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical Center in Canandaigua, New York


THE ISSUE

Entitlement to payment or reimbursement for unauthorized medical expenses for treatment provided by Massena Memorial Hospital in Massena, New York, from March 21, 2009, to March 23, 2009.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from 2010 decisions by the Department of Veterans Affairs Medical Center in Canandaigua, New York, which authorized payment or reimbursement for medical services provided on March 20, 2010, but denied payment or reimbursement for medical services provided from March 21 to 23, 2010.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The VA Medical Center determined that the Veteran had become stabilized on March 20, 2009, and thus payment or reimbursement for treatment after that date (i.e., from March 21 to  23, 2009) was not warranted.  Following the issuance of the April 2010 statement of the case, the appellant submitted a June 2010 statement from a physician who treated the Veteran during the March 2009 hospitalization at issue attached to her substantive appeal.  The VA Medical Center has not had an opportunity to review the June 2010 statement and/or issue a supplemental statement of the case.  Thus, the claim must be remanded for due process reasons.

Additionally, the April 2010 statement of the case provided the Veteran with the provisions of 38 C.F.R. § 17.120, which is not the applicable regulation in this case.  (That regulation addresses payment or reimbursement for non-VA medical care for service-connected disabilities.  The Veteran is not service connected for any disability.)  Rather, in this case, the provisions of 38 C.F.R. § 17.1002 are applicable to the Veteran's claim.  Thus, in the supplemental statement of the case, the VA Medical Center should provide the Veteran with the provisions of that regulation so that he can see the specific section addressing the issue of stabilization.  See 38 C.F.R. § 17.1002(d) (2010).


Accordingly, the case is REMANDED for the following action:

The VA Medical Center should review the June 2010 statement from Dr. Desai and reconsider the issue of entitlement to payment or reimbursement for unauthorized medical expenses for treatment provided by Massena Memorial Hospital in Massena, New York, from March 21 to 23, 2009.  If any part of the benefit remains denied, the Veteran must be provided a supplemental statement of the case, which should include a discussion of the provisions of 38 C.F.R. § 17.1002.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board in accordance with normal appellate processes. 

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2010).